Schmaling v. Swain

RICHARDS, J.

This is an appeal from a judgment in favor of the defendants in an action instituted by the plaintiff to recover the sum of $2,550, claimed to have been paid to an authorized agent of the defendants upon a purchase of a piece of real estate which the latter refused to consummate.

The facts of the case, regarding which there is practically no dispute, are as follows: The defendants were the owners of a certain tract of land in Sonoma County, consisting

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of about eighty acres, which had been subdivided into lots, each embracing ten acres, more or less. On June 25, 1914, the said defendants entered into a written contract with Charles P. Wagner and Charles P. Rogers, real estate agents, by which they agreed to employ the latter as their exclusive agents for a period of six months to sell said tract of land according to the map of the subdivision thereof at $175 net per acre to the owners, “terms to be not less than one-fifth cash down, and the balance in four annual equal installments, with interest on deferred payments payable semi-annually, quarterly or monthly, at the rate of six per cent per annum. All payments on account of principal to be divided equally between the first and second parties hereto until the parties of the second part shall have received the difference under each contract between the sale price as above stipulated. Time is of the essence of this agreement.” At some time prior to the date of the above contract the plaintiff herein had bought from Charles P. Wagner a piece of land in another tract with which the defendants herein had no connection, and had paid to said Wagner as part of the purchase price thereof the sum of one thousand five hundred dollars. The plaintiff had become dissatisfied with that transaction, whereupon Wagner, who had in the meantime obtained from the defendants the foregoing contract, proposed to the plaintiff that he would take the land embraced in his former purchase back, and would allow the said sum of one thousand five hundred dollars which the plaintiff had paid thereon to be applied upon the purchase price of lot 10 of the defendants’ tract of land. In so proposing Wagner did not disclose to the plaintiff the defendants’ ownership of said land, or the fact that he was their agent, but, on the contrary, purported to deal with said lot 10 thereof as his own; and, the plaintiff having agreed to this exchange, Wagner made a written agreement with him in his own name, by which he agreed to sell and convey to said plaintiff said lot 10 for the sum of two thousand six hundred dollars, in gold coin of the United States, payable and to be paid as follows: “Fifteen hundred dollars at the date of this agreement, and the remainder in two equal installments of five hundred and fifty dollars, together with interest at the rate of six per cent per annum on the un